Finding Hidden Defects in a Dwelling
Last modified: 2018/10/05 | Approximate reading time 4 mins
What is more shocking than discovering a problem in our home? This problem may have been present before your purchase, even if it has been a few years since you’ve bought it. You have recourses, it is up to you to proceed!
What is a “hidden defect”?
A hidden defect is any flaw or defect arising from either inferior design, deterioration or construction mistake of the dwelling.
The hidden defect must be serious and unseen. The gravity of the defect is measured by the fact that, if the buyer had known about its presence, he would not have bought the house or purchased at a lower price. The “hidden” defect is not apparent it is: water leaks from the roof and basement; rotten roof slats; crumbling foundations; worn out swimming pool covers; mold in the walls; defective electrical wiring; carpenter ant infestation; lack of insulation in an addition; an unbearable cat odor; the moisture generated by the cultivation of cannabis, etc.
Article 1726 of the Civil Code of Quebec stipulates that an apparent defect can be identified by a prudent and diligent buyer without the need to resort to an expert. When visiting your future home, be serious, attentive, and careful. The seller is responsible for hidden defects but Is not responsible for any apparent defects.
If you buy a home “at your own risk” in the condition you find it in, with or without defects, this mention in the sales contract ensures that you are not protected against hidden defects. You can sign this type of contract only in specific cases; where an owner sells his own home; purchasing a foreclosed home or a liquidator of an estate or individual that occasionally sells buildings.
Photo: West Midlands Police
A professional or specialized salesperson, that is, an individual who derives income from the sale of real estate on a regular basis, or the builder of a building, is not entitled to “sell at your own risk”. A real estate broker is not considered a professional seller when they act as an intermediary between the seller and the buyer. Nevertheless, it is up to you to inspect your future home, so keep your eyes open!
The Quebec Consumer Protection Office gives you the option to check whether the Office has intervened with a seller before, if the seller has received formal notice from consumers or if he has a license which is conveniently located on its site.
If you do not carry out an inspection, this means that you accept to buy the building with all the defects that could have been detected and to assume all the costs and repairs. The law dictates that defects that could have been detected by a prudent and diligent buyer are not guaranteed. Then, have a very close look that gives you a visual summary of the building. Using an expert is not mandatory, but if there are any doubts, do not hesitate to have the home inspected before you wish to purchase it.
An unusual fact: the presence of ghosts in a dwelling has already been considered a hidden defect, according to Cliche Laflamme Loubier law firm.
What to do if we find hidden defects?
First, you must prove the existence of the defect and its consequences by taking pictures, making videos, measuring the defect, etc. Then, you can ask for the opinion of an expert or if you know the nature and the exact extent of the defect, you can take the next step.
You may send a notice of termination, forward a letter of formal notice or enter into an amicable agreement with the seller. The notice of denunciation of the defect must be sent by registered mail or by bailiff before assigning the repair work to be done to fix said defect. The letter of formal notice must contain the description of the hidden defect, your requests to assert your guarantee against hidden defects, your conditions and the deadline for reply. This more engaging approach than just the notice of termination is a prerequisite to prosecution before the courts. You have three years from the discovery of the hidden defect, and not from the date of purchase, to undertake a lawsuit.
You can avoid confrontation by entering into an amicable agreement with the seller. In this case, it is recommended that you sign your agreement in writing. This is a contract between you and seller which must be respected.
Before the courts
According to the Quebec Legal Network, it is common for the buyer to sue the seller, for the seller to sue his seller and so on until the end of time! A variation is that the buyer pursues the selling brokers if the defect existed at the time of the sale in question.
The buyer can make the request for cancellation, the request to reduce the sale price or even repair the defect. It is worth noting that a buyer purchasing from a vendor-contractor has a variety of other protections and remedies.
The omission of damage by the seller is wrong. If the buyer demonstrates that the defect was known to the professional vendor, the seller or the developer depending on the sale, at the time the dwelling was sold, the buyer may claim damages. For example: moving expenses, hotel expenses during construction, the stress and inconvenience, the fees of an expert, etc.
Your act of sale can weigh in the balance. It is up to you to revise it and to know if it contains exclusion clauses or an increase in the guarantee of quality. The seller guarantees all the vices that are visible or hidden and if this is the case: jump for joy!
Photo: Wally Hartshorn
Translated by: David Ben-Zaken
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